Another reason to watch what you say on social media

By L.M. Sixel, Houston Chronicle

December 19, 2014Updated: December 19, 2014 9:33pm

Job seekers know they better keep their online activities G-rated because potential employers are looking at their postings. High school students are constantly reminded by parents and counselors that colleges are paying attention to the party pictures they post.

But there’s a new reason to watch what you say on social media: If you’re involved in an employment-related dispute, those contemporaneous musings better support your story.

The minute-by-minute account that millions of people post on Facebook, Twitter, Tumblr, Instagram and other social media sites increasingly are being mined by lawyers, human resource managers and others looking for evidence to contradict your memories of moments that occurred weeks, months or even years earlier.

In other words, if you recall feelings of shame, depression or embarrassment because of something that happened at work, it might not help your case if you sent a cheerful upbeat note to your friends that life couldn’t possibly get any better.

Dennis Duffy, an employment lawyer with BakerHostetler, said the online postings are being increasingly seen by judges and juries as proof of someone’s state of mind at a particular point in time.

“It’s amazing how self-revealing people are,” said Duffy, who discussed the trend recently at a luncheon sponsored by the Houston Bar Association’s Labor & Employment Law section.

Duffy recommends that both managers and employees “shut it down,” when it comes to social media. Otherwise, each side could be creating a digital record that may be difficult to explain later.

Kathy Butler, an employment lawyer with Butler & Harris, said she hasn’t encountered an experience in which she had to explain the difference between public social media comments and memories of long-ago workplace problems.

But what she has seen is an effort by some employers to prove that an employee’s raunchy social media postings are evidence that he/she can’t be offended by raunchy jokes at the workplace or other alleged misconduct.

“It’s a fishing expedition to see if (the employer) can find any dirt on the person,” said Butler, who represents mostly individual clients. “It’s an effort to redirect the attention.”

From what Butler sees, the courts aren’t buying it. She cited a case involving an employee who posted a lewd video on her MySpace page, calling it “funny.” A judge later said the post had no connection to the employee’s allegations of sexual harassment.

“The court said there is a vast difference between joking with friends and having your boss grope you and say really gross things,” said Butler, referring to the case.

By the same token, writing a post saying you’re going out drinking doesn’t mean there isn’t mental anguish, she said. Nor does saying you’re having a great time with your friends prove anything about your innermost thoughts.

One reason lawyers have pounced on social media as evidence is because it’s a written record, Butler said, and they consequently have tried to overstate its value.

But much like the cheerful holiday letters about the fabulous trips of the past year, most people are loath to report unflattering news to the world. That’s true of Facebook and other social media sites.

“People don’t want to air their dirty laundry,” said Theresa Zimmermann, co-founder of Future Focus Group, which consults with companies on strengthening employee development and leadership in Kiel, Wisconsin.

Other than the few folk who have a “pity party” on Facebook, most folks want their life to look rosy, said Zimmermann, co-author of the book, “Evolved … Engaging People, Enhancing Success: Surrendering Our Leadership Myths and Rituals.”

Not laying out the grim facts isn’t an indication of anything except putting a good face on what can be an embarrassing situation, said Zimmermann, recalling how she recently ran into a high school friend who had posted on Facebook how much she loved her new job. As they talked, she learned the situation was quite different and her friend had been fired.

“I thought she had a super-duper job,” Zimmermann said, adding that her friend never indicated anything about her work life spiraling downward.